Those of you who have practiced as lawyers must have come across the  concept of natural justice. Of course, the laws of nature are designed  to promote survival rather than justice. Nature is governed by  principles such as the survival of the fittest and prevalence of might  over right. When a herd leaves its weak members behind there is no  question of the weak being supported or protected. Therefore, ‘natural’  justice is not justice found in nature; it is a compendium of concepts  which must be naturally associated with justice, whether these concepts  are incorporated in law or not. Justice is a great civilizing force. It  ensures that the rule of law rather than the rules of nature prevail in  regulating human conduct.
The principles of natural justice have evolved under common law as a  check on the arbitrary exercise of power by the State. As the State  powers have increased, taking within their ambit not just the power of  governance but also activities in areas such as commerce, industry,  communications and the like, it has become increasingly necessary to  ensure that these powers are exercised in a just and fair manner. The  common law, which is a body of unwritten laws which govern the legal  systems of England, USA, Canada, Australia and other commonwealth  countries including India, has responded to this need to control the  exercise of State powers through applying the principles of natural  justice to the exercise of such powers.
What exactly are these principles? Basically, these are principles  which are necessary for a just and fair decision making. These  principles are often embedded in the rules of procedure which govern the  judiciary. For example, the Civil Procedure Code prescribes a detailed  procedure under which the Defendant has the right to reply to the  Plaint; both sides have the right to inspect the documents relied upon  by the other side and both sides have the right to cross-examine one  another’s witnesses. The judgment must give reasons for the decision.
In the case however, of quasi-judicial or administrative Tribunals or  bodies, the common law has laid down some basic principles which such  bodies must follow. If there is any substantial departure from these  principles of natural justice, the decision can be challenged and set  aside through the judicial process. One of the well known enunciations  of the principles of natural justice is in the case of Ridge vs. Baldwin  (1963) 2 AER 66 (HL). In that case Lord Hudson observed: 
“No one, I think, disputes that three features of natural justice stand out. 
(i) The right to be heard by an unbiased Tribunal, 
(ii) The right to have notice of charges of misconduct, 
(iii) The right to be heard in answer to that charge.”
Thus decisions of quasi-judicial bodies became open to scrutiny to  ensure that these rights are not violated. This was in sharp contrast to  the old traditional dictum to the effect that King can do no wrong.  Officers of the King became subject to judicial scrutiny when they  delivered quasi-judicial decisions. For a long time considerable  judicial effort was spent on making a distinction between quasi-judicial  bodies and administrative bodies because it was held for a long time  that administrative decisions were not subject to such scrutiny. Indian  judiciary was the first to do away with the distinction between  administrative decisions and quasi-judicial decisions, realizing that  the line between administrative decisions and quasi judicial decisions  was very thin. It also shows how administrative law has evolved from  case to case as a response to the need to have a check over arbitrary  exercise of power. In the famous case of A.K. Kripak vs. Union of India  AIR 1970 SC 150 the Supreme Court held that administrative decisions  were also subject to judicial scrutiny and could be tested on the anvil  of natural justice. In the case of Kripak, the acting Chief Conservator  of Forest was a part of the Selection Committee along with the Members  of the Union Public Service Commission to select a permanent incumbent  to the post of Chief Conservator. He was also one of the candidates for  the post. When his file was scrutinized he excused himself from the  Selection Committee saying that he cannot be a party to a decision which  would affect him. He, however, remained on the Selection Committee  which looked at the files of other candidates. The acting Chief  Conservator of Forests was selected by this Committee for the post of  Chief Conservator. The Supreme Court came down heavily against this  decision calling it contrary to the principles of natural justice. The  Court also held that it would no more accept in this country any  distinction between administrative decision making and quasi-judicial  decision making.
Other countries have slowly come around to the same view. In another  classic decision in the case of Maneka Gandhi vs. Union of India (1978)1  SCC 248 the Supreme Court discussed in detail the various aspects of  the rule of natural justice. Basically there are two norms which a  decision-making body must follow. Both are expressed in Latin maxims but  are in essence very simple principles; audi alteram partem which means  that the person concerned must be heard before a decision is taken; and  the second principle is nemo judex in causa sua which means a person  will not judge a case in which he is himself interested. Recently a  third principle has also been added which is in plain English because it  is a more recent development. It says that the decision must give  reasons.
There are several refinements or facets to these principles which  have evolved as a result of extensive case law dealing with an amazing  variety of circumstances. Many of these refinements or variations have  evolved in cases dealing with service matters – selection of candidates,  disciplinary enquiries, dismissal or discharge of employees and so on.  Other decisions have dealt with granting of licences or permissions by  public authorities, allotment of petrol pumps and the like. I must make  it clear that these principles do not apply to legislative  decision-making although it may affect the rights of citizens.  Legislatures do not have to hear the persons whose rights are affected.  This is under a belief that different view points are represented by the  legislators in Parliament since the legislators represent the people.  There are, however, areas where the power of legislation is delegated to  subordinate authorities, usually to the executive. Is it necessary to  hear the persons affected before such subordinate legislation is framed?  This is a grey area where any clear judicial authority is absent.
Let us therefore come back to the decision-making process of  quasi-judicial and administrative bodies. Natural Justice requires that  the person who is likely to be affected by the decision must be heard  before a decision is given. The hearing may be oral or it can be through  a written representation. This, in turn entails that such a person must  be informed about the nature of the enquiry and if any charges have  been framed against him, of the charges. There are many income tax cases  where it has been said that the documents on which the Department  relies must be disclosed to the other party. What is more, the  Department should disclose to the other parties not just the documents  on which it relies but all relevant documents on which it may be able to  rely. So from the right to be heard, one travels to the right to  disclosure of documents because without such documents a proper  representation cannot be made.
Then, one comes to the right of cross examination. If one is relying  on a document of a third party, an opportunity should be given to cross  examine the third party. The right of cross examination may not be  absolute or available in all circumstances. In fact principles of  natural justice cannot be put in a straitjacket. These will have to be  applied depending upon the facts and circumstances of the case. The  right of cross examination can be more readily inferred in the case of a  formal enquiry. But when the enquiry is informal and is conducted in  the presence of all concerned, a formal right of cross examination may  not be inferred. The judicial trend appears to be towards expanding the  application of principles of natural justice to cover the right of cross  examination. However, there have been cases where the Court has  declined to infer such a right. In a case where the inmates of a girl’s  hostel had complained to the Principal about misbehaviour and  molestation by boys of the adjoining hostel, the Court accepted the plea  that the request of the boys to cross examine the girls could not be  granted in public interest.
Does the right to be heard imply the right to engage a lawyer who  will represent the concerned person? The case law has clearly laid down  that there is no right to engage a lawyer in a Departmental enquiry  unless the other side is represented by a lawyer. In a matter involving  complex legal issues, the Tribunal may permit both sides to engage  lawyers. But this is not normally done.
There are also exceptions to the doctrine of audi alteram partem. In a  case of urgency, action can be taken without a hearing. For example, if  a smuggler is about to abscond to another country, his passport can be  seized without waiting for a hearing. Therefore, in an emergency, if you  have to do something so quickly that the very mischief sought to be  averted will take place unless the principles of natural justice are  waived, such waiver is permissible. Even here, the Courts have  introduced the principle of a post-decisional hearing so that the person  against whom the order is passed gets a right to make a representation  to have the decision revoked or altered. In the Maneka Gandhi case,  where the passport was cancelled, the Supreme Court ultimately sustained  the cancellation subject to a post decisional hearing being given.
There are also other cases where the decision may be upheld although  no hearing has been given. For example, if the conclusion which is  arrived at is obvious and no amount of hearing could have made any  difference to the decision, the decision will not be invalidated because  a hearing is not given. In another case, where pursuant to the Supreme  Court’s order the status quo ante was restored without giving a hearing  to the party who had benefited in the meanwhile, the Court refused to  set aside the action although no hearing had been given to the benefited  party. 
Article 311 (2)(b) of the Constitution has also expressly permitted a  departure from holding an enquiry in cases where it is not reasonably  practical in public interest to hold an enuiry. However, in such cases,  reasons for the decision have to be given in writing.
Another test which has been laid down for departure from the  principles of natural justice is where violation of the facets of the  principles of natural justice has not caused any prejudice. These are  usually cases where the party aggrieved contends that an adequate  opportunity was not given for a hearing. The Court in such circumstances  must ascertain whether the aggrieved person did get a fair hearing and  whether the lack of opportunity vitiates the final order. These are  cases where an opportunity was in fact given but was considered  inadequate by the aggrieved party. The test of prejudice has been  explained in detail in Karunakar’s case reported in AIR 1994 SC 1074.  The test of prejudice can also be applied to cases where a procedural  provision is not followed which is not mandatory. For example, if a  person is dismissed without supplying him with a copy of the enquiry  officer’s report, it will have to be examined whether any prejudice has  been caused to the aggrieved person as a result. It is not always easy  to decide whether a procedural provision is mandatory or not. The Courts  will have to see whether non-observance of these principles has  resulted in deflecting the course of justice. Grievances such as enough  time not being given to prepare the case, lawyer not being allowed or  entire material not being given, have to be examined on this touchstone  of prejudice. One may also have to examine whether the procedural  provision is in public interest or whether the aggrieved party has  waived the procedural provision or such other circumstances.
The second important maxim is to the effect that a person will not be  a judge in his own cause. In fact, the Kripak case is a typical example  of a decision-maker being personally interested in the decision. In the  Bombay High Court, we have the convention of a Judge not hearing the  case of a company in which he has purchased shares. This convention has  resulted in a judge recusing himself from a case because in a  multi-crore company he holds a few hundred shares. But it is always  preferable to err on the safe side rather than invite the comment of  being an interested person. Interest, of course, can be of various  kinds. And it is best to bear in mind that justice must not merely be  done but must be seen to be done.
A fair and impartial hearing is at the root of this principle. You  might remember the famous Pinochet’s case in the House of Lords where  one of the Law Lords who had heard the case was a trustee of a charity  which was associated with one of the parties. The entire case had to be  re-heard. On a smaller scale, we have many cases where committees  appointed to select, for example, text books for educational  institutions, have as their members, authors of some of these books.  Clearly the decision of such committees is vulnerable. There are also  cases where the decision of the committee is arrived at on the basis of  dictates of third parties such as Ministers. Allotment of flats in  public housing schemes or petrol pumps can be thus affected and would be  susceptible to challenge.
There is only one more principle that has slowly taken root as a part  of natural justice. This is the principle that every decision must  contain reasons for the decision. Reasons may be elaborate or may be  brief. But these are beginning to be considered necessary to ensure fair  decision making. There are many grounds for requiring reasons. In the  first place, it ensures application of mind by the decision maker to the  material before them which will be reflected in the reasons given. A  non-speaking order does not do this. That is why under the new  Arbitration and Conciliation Act, it is now mandatory for Arbitrators to  give reasons. Secondly, the exercise of giving reasons prevents  prejudices from creeping into the decision making process. The decision  maker is forced to examine the material and apply appropriate principles  to the decision. It also makes it easy for the Appellate Body if there  is one, or the Court exercising writ jurisdiction to ascertain the  reasons which prompted the decision impugned before it. There is,  therefore, an increasing tendency to insist on reasons for  administrative and quasi-judicial decisions. Of course, not all  decisions are reasoned decisions. When the cricket captain opts for  heads or tails, he cannot be expected to give reasons for his choice.  Fortunately, one hopes that administrative decisions which affect others  are not decisions of this kind. In fact, asking for reasons ensures  that they are not just ipse dixit of the decision maker. It is in this  context that Article 14 of the Constitution must also be looked at  because Article 14 has been interpreted as a protection against  arbitrary action.
It is also interesting to note that the protection of the principles  of natural justice is available not just to citizens but also to  non-citizens in our country. In the case of Det Norske Veritas vs.  Reserve Bank of India 1989 Mah. Law Journal 107. the Bombay High Court  held that the refusal of a licence to a non citizen who had been  operating in India for some years must comply with the principles of  natural justice. This is in sharp contrast to the decisions, for  example, of English Courts while dealing with orders of immigration  authorities in their country or the decisions of the U.S. Courts while  dealing with protection to non-citizens. We have rightly held that the  principles of natural justice relate to fair and impartial decision  making. Such decisions must be made in all cases, whether they pertain  to citizens or non-citizens.
To conclude, I will only remind you once again that these are  procedural laws to ensure fair decision making. They do not contain any  guarantee of fair laws or fair rules. Unless the laws are fair and are  fairly implemented, there cannot be justice in the true sense. Secondly,  procedural safeguards do not necessarily ensure a fair outcome.  Procedural lapses may result in upsetting even good decisions against  individuals who may be guilty of a breach of law. Therefore, one must  apply these principles in a balanced way in the circumstances of each  case. The considerable body of case law indicates that this is not  always easy or obvious.
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